Sean Cooney

China's Labour Law, Compliance and Flaws in Implementing Institutions

This article examines some of the factors contributing to the widespread compliance failures experienced by Chinese labour law. It focuses on the nature of the legal rules and the structure of state and quasi-state institutions charged with implementing the law. While the basic legal framework regulating labour in China appears designed to prevent many abuses, the lack of settled detail inhibits effective enforcement. The labour inspectorate, formal dispute resolution processes and the official trade union organization each suffer from weaknesses reducing their capacity to elicit compliance with the law. Some improvements to the law and the institutions are already being implemented. The article suggests further areas of reform that may increase compliance, within the constraints of Chinas current political realities.

Law and labour market regulation in East Asia

Review(s) of: Law and Labour Market Regulation in East Asia, by Sean Cooney, Tim Lindsey, Richard Mitchell and Ying Zhu (eds), Routledge Studies in the Growth Economies of Asia (No 39), London and New York: Routledge, 2002. Pages: xv + 282. ISBN 0415221684.

Rule of Law with Chinese Characteristics: The Role of Campaigns in Lawmaking

China increasingly relies on its legal system to regulate a broad spectrum of social and economic activity. There is, however, widespread failure to observe the law, which periodically leads to social crises and popular unrest. The Chinese state is not, of course, alone in experiencing this, but it responds to enforcement failures in distinctive ways. This article examines one such response. In this article, we explore the role played by the enforcement campaign in the development of the Chinese legal system. We focus on one campaign in particular: the campaign that was waged between 2004 and 2007 to redress the chronic failure to pay wages. Chinese enforcement campaigns are not simply directed at securing greater compliance with existing law. They are integrally linked to cycles of law reform in the PRC. Whilst their main impact is on enforcement, they also have an important role in influencing the drafting of legislation and the interpretation of law. This article documents the impact of this campaign on the production of law: in speeding up the iterative process of lawmaking, interpretation, and implementation, with production of important reforms to existing labour law in 2007 and 2008. It is the strong “planned” nature of the campaign and its emphasis on state leadership of lawmaking and enforcement that continues to shape the development of Chinas particular version of the “rule of law.”

Command and Control in the Workplace: Agreement-Making under Work Choices

This article provides an overview of the radical changes in workplace agreement-making introduced by the ‘Work Choices’ amendments to the Workplace Relations Act. It outlines the six types of statutory workplace agreement and the procedures, termination rules and content requirements associated with them. While some agreement-making procedures have been simplified, this has come at the cost of independent oversight. Furthermore, the governments overall regulatory approach is shown to be prescriptive, punitive and one-sided. The article contrasts the new workplace agreements with contracts and observes that alternative regulatory frameworks could readily have been created, with greater respect for party autonomy.

Economic Globalization and Convergence in Labor Market Regulation: An Empirical Assessment

A major question for the comparative analysis of industrial relations and labour market institutions has been the extent to which labour laws in different countries have converged or diverged over time. A second question is whether any convergence between labour law systems is associated with economic globalisation. Using a new measure of the ‘protective strength’ of a country’s labour market regulation (the Longitudinal Labour Regulation Index), this study compares the evolution of labour laws in six countries (Australia, France, Germany, India, the United Kingdom and the United States) for the period 1970 to 2005. We assess whether there has been a convergence in the protective strength of labour market regulation between these countries or ongoing divergences between them. In particular, we test whether there is evidence of ‘formal’ or ‘functional’ convergence, ‘weak’ or ‘strong’ convergence, ‘simple’ or ‘bipolar’ convergence, and whether convergence is associated with globalisation and economic integration between the countries included in our study. Our analyses show that over the period from 1970 to the mid-1980s the protective strength of labour laws of different countries actually diverge, but began to converge thereafter. Although we find evidence of both formal and functional convergence during this later period, this propensity has been weak, and tended to a pattern of ‘bipolar convergence’. At the same time, the data do not indicate that any of these processes of convergence were associated with ‘Americanisation’ of labour law, or a race to the bottom.

Mandate, Discretion and Professionalisation in an Employment Standards Enforcement Agency: An Antipodean Experience

In recent years there has been a resurgence of scholarly interest in the operation and effect of labour inspectorates around the world. This article aims to contribute to this mounting comparative and socio-legal literature by considering the emergence of an active and high profile enforcement agency in Australia – the Fair Work Ombudsman (FWO). Drawing on the experiences of inspectors and senior managers at the FWO, we examine the structure and mandate of the agency, as well as the discretion afforded to, and the professionalisation of, individual inspectors. While some have sought to draw a distinction between a rule-bound, specialised approach characteristic of certain “Anglo-American” countries and the so-called “Franco-Iberian” model, which places a greater emphasis on flexibility and pragmatism, we found that the FWO does not necessarily fit neatly within this dichotomy. Rather, we observe that as the FWO is a new institution, its mode of operation is in the process of evolution. At present it is pluralistic, in the sense that it exhibits a hierarchical, procedural approach in a drive to address concerns of consistency and accountability, while at the same time allowing, and sometimes encouraging, individuals to be experimental and adaptive.